New IAEA DG report on Iran Still Incorrect on the Legal Mandate of the IAEA

The February 21, 2013 IAEA Director General’s report on implementation of safeguards in Iran provides a good opportunity to revisit one of the points I made in a blog post last year, which has been fairly widely discussed and which was the subject of an ISIS report (read hatchet job) by David Albright and some of his friends, only one of whom is a lawyer (I responded to their report previously here). The point in question is the incorrectness of the IAEA Director General’s (and by extension the IAEA Office of Legal Affairs’) understanding of the scope and content of the IAEA’s legal mandate to investigate and assess compliance of states parties to INFCIRC/153 Comprehensive Safeguards Agreements with the IAEA. (See also my contributions to a roundtable on this question published by the Bulletin of the Atomic Scientists)

Much of the discussion on this point in my earlier post, and in the Albright & Co. report, focused on a recurring footnote in IAEA DG reports on Iran. As Pierre-Emmanuel Dupont noted in his excellent review of this question in light of the new DG report on Iran, in this new report there was a slight but (to lawyers at least) significant change in the footnote text (fn. 61). Here is the new version, with the change in italics:

The Board has confirmed on numerous occasions, since as early as 1992, that paragraph 2 of INFCIRC/153 (Corr.), which corresponds to Article 2 of Iran’s Safeguards Agreement, authorizes and requires the Agency to seek to verify both the non-diversion of nuclear material from declared activities (i.e. correctness) and the absence of undeclared nuclear activities in the State (i.e. completeness) (see, for example, GOV/OR.864, para. 49 and GOV/OR.865, paras. 53-54).

Pierre was kind enough to speculate in his post that this change in the footnote text was a result of my arguments in my previous post. I have to say that that was my first thought as well when I saw the new report. If that’s true, then I am glad to see that the lawyers in the IAEA OLA are taking note of the commentary on ACL. I do very much hope that this blog will add to serious consideration of arms control law issues among governments and international organizations.

Unfortunately, however, I must agree with Pierre that the addition of the document GOV/OR.865, paras. 53-54, does not provide support to the DG’s erroneous understanding in the text of the footnote that “paragraph 2 of INFCIRC/153 (Corr.), which corresponds to Article 2 of Iran’s Safeguards Agreement, authorizes and requires the Agency to seek to verify both the non-diversion of nuclear material from declared activities (i.e. correctness) and the absence of undeclared nuclear activities in the State (i.e. completeness)”

Let’s first deal with the threshold fact that in footnote 61, as in its incarnations in previous DG reports, the IAEA DG cites to decisions of the IAEA Board of Governors for authority in interpreting the legal mandate of the IAEA to investigate and assess compliance of states with CSA obligations. This in and of itself is incorrect as a matter of law.

The IAEA BOG is comprised of 35 states, out of the 162 member states of the IAEA. The IAEA Statute does not confer on the BOG any special proprietary entitlements with regard to interpretation of the IAEA Statute or CSA’s. As Pierre insightfully pointed out in his piece, decisions of the BOG are therefore very different in their interpretive implications for relevant treaties from, say, the consensus Final Documents of NPT Review Conferences, under the rules on treaty interpretation contained in the 1968 Vienna Convention on the law of Treaties, and the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations. Unlike the consensus decisions of all NPT parties contained in Final Documents of NPT Review Conferences and their very real implications for interpretation of the NPT, decisions of the 35 members of the IAEA BOG have absolutely no interpretive implications per se for the IAEA Statute, or for individual CSA’s.

So let’s first of all be clear on this point – the IAEA BOG does not have the authority to interpret the IAEA Statue or individual CSA’s, and they do not have the authority to determine the scope or content of the IAEA’s mandate to investigate and assess state compliance with CSA’s. The IAEA’s authority, as that of any international organization, is a product of its constituting documents (here the IAEA Statute), other authorities specifically given to it by states (e.g. CSA’s), and its practice as accepted generally by states (see the ICJ’s 1949 Reparations case for these principles of law). I made this point in my original post on this topic.

However, for the sake of interest, and because of the erroneous reliance by both the IAEA Director General (or rather the IAEA Office of Legal Affairs) and Albright & Co. on these decisions by the IAEA BOG as a statement of the IAEA’s authority to investigate and assess compliance with CSA’s, let’s proceed to take a look at the new addition to the footnote, GOV/OR.865, paras. 53-54.

We do find in this newly cited document, as was not present in the previously exclusively cited GOV/OR.864, a record of the continuation of the BOG’s March 30, 1995 meeting, which records a decision by consensus of the BOG to accept the chairman’s previously recorded summing up, as reflecting “the broad majority view in the Board.” This decision was taken even though there was very serious disagreement expressed with the summing up statement by a number of governors, as I noted in my original post, and as Pierre has noted as well.

So, GOV/OR.865, paras. 53-54 records that the Board eventually decided to accept the chairman’s summing up as a majority statement. Do note this fact. The BOG decided to accept that a majority of the members of the BOG agreed with this summing up statement. They didn’t agree that they all agreed with it. Again, this goes to the interpretive weight of this statement – which is nil.

But, to proceed. Let’s look at the chairman’s summing up statement, with which a majority of the Board agreed, to see what it actually says.

The Board reiterates that the purpose of comprehensive safeguards agreements, where safeguards are applied to all nuclear material in all nuclear activities within the territory of a State party to such an agreement, under its jurisdiction or carried out under its control anywhere, is to verify that such material is not diverted to nuclearweapons or other nuclear explosive devices.

Ok stop right there. Did you read that? Here the Board correctly states that the purpose of CSA’s is to verify the non-diversion of fissile materials to nuclear weapons. This comes right out of Article 2 of the CSA. So right off the bat, this shows that the Board, at least in 1995, understood that the purpose of CSA’s, and thus the mandate of the IAEA, DOES NOT extend to investigations or assessments of research and development related to nuclear warheads – i.e. “possible military dimensions” of a safeguarded state’s nuclear program, as the DG has grown fond of phrasing it. That has certainly changed over time. See my JURIST piece on this subject following the release of the DG’s report on possible military dimensions of Iran’s nuclear program in November 2011.

Continuing with the summing up statement . . .

To this end, the safeguards system for implementing comprehensive safeguards agreements should be designed to provide for verification by the Agency of the correctness and completeness of States’ declarations, so that there is credible assurance of the non-diversion of nuclear material from declared activities and of the absence of undeclared nuclear activities.

This is the sentence that the IAEA OLA, and the Albright brigade of mostly non-lawyers in their report criticizing my legal analysis, think is so important in showing that the IAEA has the legal mandate under the INFCIRC/153 CSA to investigate and assess not only the correctness but also the completeness of an NNWS’s CSA declaration. But what does the text of the summing up actually say? It says that the system for implementing CSA’s should be designed to provide for verification by the IAEA of both completeness and correctness of the declaration. Ok. So are they saying here that the basic CSA – the INFCIRC/153 – ALREADY provides this authority? No, they are not saying that. Pierre very insightfully in his piece referenced the context of these deliberations of the BOG in 1995, and the 93+2 program that was their subject. In light of this context, it is clear that what the BOG is referencing at this point in the summing up statement is the Additional Protocol, which was the second component part of the 93+2 program, and which was the primary subject of this statement of the Board.

So with this understanding, what is the BOG, or I should say a majority of the BOG, saying here? They are saying that NNWS under IAEA safeguards should adopt the new Additional Protocol in order to allow the IAEA the authority and tools to verify not only the correctness but also the completeness of the INFCIRC/153 declaration. Now read the rest of the excerpt with this interpretation in mind.

It was recognized that under comprehensive safeguards agreements the States parties and the Agency have an obligation to co-operate fully in achieving effective implementation of the agreements. While recognizing that a strengthened safeguards system will benefit from technological developments and call for greater access to relevant information and greater physical access to relevant sites for the Agency, either on the basis of existing authority provided for in comprehensive safeguards agreements or on the basis of complementary authority to be conferred by the States involved, while noting that some Governors have reservations at this stage about the need for greater access to sites and while not at this stage taking a decision on any of the specific measures proposed in document GOV/2784 or on their legal basis, which were not fully discussed at the present session, the Board endorses the general direction of Programme 93+2.

It makes sense, doesn’t it? Authority and tools for the IAEA to investigate and assess the completeness of a state’s declaration, as well as its correctness, was to come from “complementary authority to be conferred by the States involved” – i.e. through the adoption of an Additional Protocol, on a state by state basis.

So to sum up, both the IAEA DG (OLA), and Albright & Co. are incorrect in a number of ways on this point. First, they are incorrect in relying on decisions by the IAEA BOG as a basis for determining the scope and content of the IAEA’s authority to investigate and assess safeguards compliance. Second, they are incorrect in asserting that the decision of the IAEA BOG recorded in GOV/OR.865, paras. 53-54 in any way supports the understanding that, pursuant to the terms of the INFCIRC/153 CSA alone, the IAEA has the authority to investigate and assess not only the correctness but also the completeness of a state’s CSA declaration. As I have explained in my previous post, and in my contributions to the BAS roundtable on this topic, the IAEA’s mandate under an INFCIRC/153 CSA, which is the only safeguards agreement in force in Iran’s case, is limited to investigation and assessment of the correctness of the state’s (here Iran’s) declaration, pursuant to the terms of its CSA.

Thus, when in the February 21, 2013 IAEA DG report on Iran, the DG once again states that the IAEA “continues to verify the non-diversion of declared nuclear material at the nuclear facilities and LOFs declared by Iran under its Safeguards Agreement,” he is making an assessment under the only lawful authority the IAEA has for investigations and assessment of safeguards compliance. In this assessment, the DG confirms once again that Iran is currently in full compliance with its IAEA safeguards obligations, as verified by the IAEA.

“(b) For 51 of these States, the Secretariat found no indication of the diversion of declared nuclear material from peaceful nuclear activities. ******Evaluations regarding the absence of undeclared nuclear material and activities for each of these States remained ongoing.***** On this basis, the Secretariat concluded that, for these States, ******declared****** nuclear material remained in peaceful activities.”

Note the political difference in phraseology?

The same is true of Iran: the Secretariat has concluded that, for Iran, ******declared****** nuclear material remained in peaceful activities.

One reason for lack of standard info appears to be that the IAEA in regards to Argentina and Brazil appears to be involved in a “regional safeguards regime” overseen by an organization called “ABACC – Brazilian-Argentine Agency for Accounting and Control of Nuclear Materials.” This organization was formed by Argentina and Brazil under treaty to apply safeguards to avoid nuclear weapons diversion.

I am both amused and confused by the various and conflicting justifications provided for the standard applied to Iran. On one hand we are told that the existing safeguards agreements (from the 1970s) already empowered the IAEA to do what the Additional Protocol (from the 1990s) also empowers it to do, despite contrary assertions by the IAEA itself about the need to expand inspection authority and so logically no additional expansion of authority would be required…and on the other hand we’re told that the authority of the IAEA has suddenly now been expanded (or at least with respect to Iran) on an ad hoc basis by the UNSC, and so it can now impose the AP on states even if they did not sign the AP in violation of internaltional law.

Wait, what?

Yousaf, as I understand it the IAEA does not usually issue country-specific IAEA reports and instead issues a single Safeguards Implementation Report. The exceptions are for Iran, NK and Syria. There was one for Egypt and another one was considered for an unrelated laer discovery of unexplained particles of HEU. Brazil has flatly refused to sign the AP and has even restricted access to its centrifuges, citing the need for design protection.

Peter Jenkins made this point back in 2010, which I have yet to see any media outlet even hint at whenever they write their articles about Iran’s oh-so scary nuclear program.

Given that international pressure for Iran to apply the additional protocol has been intense, it is not surprising that since 2006 IAEA reports have stressed that the agency is not in a position to confirm that all nuclear material is in peaceful use (or that there is no undeclared nuclear material in Iran). This statement is designed to add to the pressure. Beyond that the statement is no more than a necessary consequence of Iran’s refusal to apply the additional protocol. The same words could be used by the IAEA Director General if he were producing a report on another state that has declined to bring an additional protocol into force, e.g. Israel, Egypt or Brazil. The phrase cannot, and should not, be taken to imply that the IAEA has (or has not) specific grounds to suspect the presence of undeclared material, or the existence of undeclared activities.

It should be merely taken as a statement of fact: well of course the IAEA cannot confirm the purely peaceful nature of the nuclear programs in 50 other states either. And if one wants to be logically precise they cannot do so for any state.

ARTICLE II
Confidential information
The United Nations or the Agency may find it necessary to apply certain limitations for the
safeguarding of confidential material furnished to them by their Members or others, and, subject to the provisions of Article IX, nothing in this Agreement shall be construed to require either of them to furnish any information the furnishing of which would, in its judgement, constitute a violation of the confidence of any of its Members or anyone from whom it shall have received such information.

And this:

The Agency shall report to the Security Council and the General Assembly any case of noncompliance within the meaning of Article XII, paragraph C, of its Statute.

And this:

Co-operation with the Security Council
The Agency shall co-operate with the Security Council by furnishing to it at its request such
information and assistance as may be required in the exercise of its responsibility for the maintenance or restoration of international peace and security.

And this:

Article XVI of the Statute of the International Atomic Energy Agency authorizes the Agency to
enter into an agreement establishing an appropriate relationship between the Agency and the United Nations, which agreement shall provide for the submission by the Agency of reports to the United Nations and the consideration by the Agency of resolutions relating to it adopted by the General Assembly or any of the Councils of the United Nations.

Iran has long complained about the lack of confidentiality accorded to it at the IAEA. And there was no violation by Iran of Article XII, paragraph C because Iran has allowed the required inspections and the IAEA has certified that there has been no diversion of nuclear material for nonpaceful purposes..This is where many confuse safegurad breaches with NPT noncompliance, which are two differernt things.

I just received today an email from Tom Coppen at the University of Utrecht, who made some interesting observations on this post and asked some important clarifying questions. With his permission, I will excerpt his comments/questions and then also provide the answer I sent to him:

Tom’s comments/questions:

“Your second argument was also made last Wednesday by Iran in the Board. . . . Yet glancing over the Board reports that are referred to, at least in 1992 it did not seem to me that states had any problems with interpreting INFCIRC/153 to give the IAEA a mandate to verify correctness and completeness.

Also, in your opinion the Boards interpretation does not have any legal effects. But does this hold true even when IAEA member states seem to acquiesce that it does? By this I mean that even Iran refers to the Board reports to support its interpretation of INCIRC/153; moreover, currently, in the discussion on the introduction of the state-level concept, states look to the Board to decide on the matter. And, as we know, the state-level concept rests on the assumption that the IAEA can verify both correctness and completeness of state declarations under INFCIRC/153.”

My response:

“I do hold to the opinion that the BOG has no authority per se to interpret the IAEA Statue or CSA’s. I think this is just a fundamental point of the law of international organizations. Some international organizations have in the constituting instruments special assignments of authority to certain organs allowing them to interpret related treaties. The WTO Agreement comes to mind here. But the IAEA Statute does not give the BOG any such entitlement. And of course CSA’s are bilateral treaties between the IAEA and a member state. I see absolutely no basis on which one party to a bilateral treaty, even if that party is an international organization, can assume a privileged power of interpretation of the treaty.

With regard to the fact that all sides appear to frequently look to the IAEA BOG for its interpretation of issues of IAEA related law and authority, I think this is simply in error, and that they are not being advised well by their legal staff.

On the question of acquiescence of states, I think that when the Reparations case talks about the acquiescence of states to the actions of an international organization, and this having a constitutive effect on the scope of authority of the organization, it was in a very narrow sense, which in that case was the international legal personality of the international organization. There, as you know, the question was whether the UN had objective international legal personality sufficient to bring legal action against a state (Israel) that was not a UN member. I see this situation as being very different from the situation of determining what the scope and content of the IAEA’s authority is for investigating and assessing safeguards compliance. On that question, I think that the IAEA Statute and the terms of the CSA’s negotiated bilaterally with states are the exclusively controlling legal sources.”

“I think that the IAEA Statute and the terms of the CSA’s negotiated bilaterally with states are the exclusively controlling legal sources.”
I’m surprised you didn’t mention the basic controlling document, the NPT, and its “exclusive purpose” statement confining the IAEA to correctness, i.e. non-diversion.

Iran didn’t agree to any other oversight by the IAEA or BOG when it signed the NPT, including the IAEA Statute, excepting any later agreement of course, any acquiescence to the BOG by any member states notwithstanding.

Hi Don, You are right that Article III(1) of the NPT does say that. Essentially Articles 1 and 2 of the CSA were drafted to closely mirror the language of Article III of the NPT. The IAEA Statute, and the IAEA as an organization, existed before the NPT, so the IAEA’s basic institutional structure and authority comes from its Statute. The CSA, then, was structured to mirror the NPT requirement, and to be directly binding on both the IAEA and the state party to the CSA.

Interestingly, the US director of National Intelligence does not share IAEA’s suspicions about Iran’s nuclear program. Testifying before a Senate panel, James R. Clapper today delivered the U.S. intelligence community’s overview of global threats …

In assessing Iran, the report stated flatly that Tehran is developing nuclear capabilities to enhance its security and influence and “give it the ability to develop a nuclear weapon.” But the report stopped short of saying a decision has been made.

“We do not know if Iran will eventually decide to build nuclear weapons,” the report said.

Clapper explained that in the last year, Iran has made progress in working toward producing weapons-grade uranium. However, the report said Iran “could not divert safeguarded material and produce a weapon-worth of weapons-grade uranium before this activity is discovered.”

Clapper said this: [Iran] “could not divert safeguarded material and produce a weapon-worth of weapons-grade uranium before this activity is discovered.”

In and of itself that is a perfectly reasonable statement.

You then said this: “Mr. Clapper would not ‘confidently’ assess that any diversion would be detectable, if he harbored suspicions about ‘completeness’ of Iran’s declarations”

Errr, sorry, but you just verballed Clapper.

He said what he said, and what he said was that Iran couldn’t divert any DECLARED nuclear material without that diversion being detected which is, of course, quite correct.

But he said nothing – zip, zero, nada – about the USA intelligence estimates of whether (or not) there are any UNDECLARED nuclear material inside Iran. He therefore said nothing – not a word – about whether (or not) the USA would be able to detect “weaponization” under that circumstance.

Someone should have asked him about that and, apparently, nobody did.

Which is a pity, but I’ll point out – again – that simply because he had nothing to say on that subject that does not necessarily mean that he thinks all the uranium is accounted for; such an inference amounts to putting words into his mouth.

Point well taken, but I disagree. We only know the public report, ,questions/answers. Having said that, I find the idea frankly ridiculous that DNI either knew of , and/or had no way of knowing if there were undeclared work and material, but went ahead and gave utterly meaningless assurances that weaponization would be “discovered”,

Well, yeah, to leave Clapper’s statement hanging in the air without ANYONE on that Senate committee asking The Obvious Next Question is, sure, “frankly ridiculous”.

Someone should have asked about the possibility of UNdeclared nuclear material, at which point Clapper would have had to answer:
1) Nah, we’d know if they had!
2) Sure, yeah, we think that’s possible/likely/certain/whatever
3) F**ked if we know, wadda you think, Senator?

But, just to point this out one more time, yet again, because this never gets old….

You said: [Clapper] “went ahead and gave utterly meaningless assurances that weaponization would be “discovered”, ”

No, sorry, he gave no such assurances.

He said that Iran can’t divert DECLARED nuclear material without that diversion being discovered. No more. Nothing less.

Any wider inference that you give to his comments are YOUR words, not HIS.

Point well taken, but I disagree. We only know the public report, ,questions/answers. Having said that, I find the idea frankly ridiculous that DNI either knew of , and/or had no way of knowing if there were undeclared work and material, but went ahead and gave utterly meaningless assurances that Iran can’t divert DECLARED nuclear material without that diversion being discovered

Any country could have undeclared nuclear material or facilities. This is speculation, nothing more, and there is no way to disprove it (at least not without the AP in force.) But there is no evidence of any “undeclared” nuclear materials or activities in Iran either, as ElBaradei said when he welcomed the US NIE’s conclusions:

“The American assessment “tallies with the agency’s consistent statements over the last few years that — although Iran still needs to clarify some important aspects of its past and present nuclear activities — the agency has no concrete evidence of an ongoing nuclear weapons program or undeclared nuclear facilities in Iran,” Dr. ElBaradei said in a statement.

(note what the NY Times failed to also report: while the IAEA welcomed the NIE’s conclusion that Iran had no extant nuclear weapons program, the IAEA never endorsed the NIE’s conclusion that Iran had a nuclear weapons program prior to 2003, and in fact the IAEA later released a statement to that effect: http://www.iaea.org/newscenter/mediaadvisory/2009/ma200919.html)

Lets remember that while Iran has not legally ratified the AP, it nevertheless implemented it for a couple of years, and even exceeded it, with no hint of undeclared material/facilities found:

“Iran has continued to facilitate access under its Safeguards Agreement as requested by the Agency, and to act as if the Additional Protocol is in force, including by providing in a timely manner the requisite declarations and access to locations.”http://www.panjab.org.uk/english/IranIAEA.htm

And the Nov 2007 IAEA report stated that the IAEA has “no concrete information, other than that addressed through the work plan, about possible current undeclared nuclear material and activities in Iran”

Even the US doesn’t accuse Iran of having undeclared nuclear material or activities, but instead accuses Iran of having the “intention to obtain the capability” to make nukes at some indefinite point in the future.

And of course we know from Seymour Hersh’s reporting that the US has even inserted US Special Forces into Iran with an array of nuclear detecting instrumentation over a period of years – and found absolutely NO indication of undeclared nuclear materials or facilities.

So I’d say Clapper should be pretty well convinced that there are no such facilities or materials.

“Even the US doesn’t accuse Iran of having undeclared nuclear material or activities, but instead accuses Iran of having the “intention to obtain the capability” to make nukes at some indefinite point in the future.”

Yet according to Clapper’s statement to the Senate committe the USA acknowledges that Iran already possesses that capability, and the only thing that is lacking is the political will to make the decision to turn that “capability” towards the “manufacture” of nukes.

In which case, of course, what’s all the fuss about?

Why *is* US foreign policy geared towards preventing Iran from possessing a “capability” that the US intelligence community acknowledges Iran already possesses?

I think IAEA and the 17 US intelligence agencies on whose behalf DNI speaks, do not possess equal capacities.E.g. One can, and the other cannot task a Pakistani general to offer Iran weapons grade plutonium to assess Iran’s sincerity. One does, and the other does not have human intelligence, signals intelligence, spy satellites, etc. One can and the other cannot pose as middlemen to procure weapons-related bits and bobs and bait Iran.

So when DNI reports that Iran “could not divert safeguarded material and produce a weapon-worth of weapons-grade uranium before this activity is discovered,” it is of entirely different significance to IAEA’s innuendos to the contrary.

“Iran is growing more autocratic at home and more assertive abroad as it faces elite and popular grievances, a deteriorating economy, and an uncertain regional dynamic.”

In other words, the sanctions are having an opposite effect to the desired effect. Way to go Team USA. And there are some positives for Iran that Clapper forgot to mention.
–Iran is becoming more self-dependent, spawning the modernization and expansion of old industries, and the spawning of new ones.
–Iran is setting the pace for the majority of nations in the world who reject American Exceptionalism, via the NAM and by just being a model of independence.
–The US has had to waive sanctions for many countries, and will notably have to do it now for Pakistan who with Iran has just inaugurated a new gas pipeline. The US must have Pakistan bug-out routes from its failing Afghanistan effort.

And Clapper didn’t mention that sanctions effects are not unilateral, they also affect other parties. In Iran’s case this mostly means Europe, which is currently in dire financial straits thanks in part to US sanctions on their trade.

But nobody ever claimed the intelligence was a requirement for Intelligence. Speaking of which, Matthew Olsen of the Counter-Terrorism Center is also testifying before the Senate Select Committee. Olsen is the guy that last summer at the Aspen Institute said:

“There are times when we are briefing the White House [on terror threats that] at the top of the list are Hezbollah or Iran. This is a hot war that has gotten hotter.”

Olsen said that, despite the fact that no Iran organization and no Iranian are on any of the terrorist lists, so I’m looking forward to his testimony. It’s just tough to dump on Iran, which has done nothing illegal, without it backfiring.

I’ll let Dan speak for himself but would not be surprised if authors weigh the costs of time, absence from family activity, lost vacation against the benefit of producing something worthwhile and important.

About the treaties — see Huntington’s view in his book the “Clash of Civilizations”.

It has some excellent quote on arms control post-cold war — e.g. excerpted in an essay here:

“Another result is the redefinition of
arms control, which is a Western concept and a Western goal. During the Cold War the
primary purpose of arms control was to establish a stable military balance between the United States and its allies and the Soviet Union and its allies. In the post-Cold War world the
primary objective of arms control is to prevent the development by non-Western societies of
military capabilities that could threaten Western interests. The West attempts to do this
through international agreements, economic pressure and controls on the transfer of arms
and weapons technologies.

“The conflict between the West and the Confucian-Islamic states focuses largely, although not exclusively, on nuclear, chemical and biological weapons, ballistic missiles and other
sophisticated means for delivering them, and the guidance, intelligence and other electronic
capabilities for achieving that goal. The West promotes nonproliferation as a universal norm
and nonproliferation treaties and inspections as means of realizing that norm. It also threatens a variety of sanctions against those who promote the spread of sophisticated weapons and proposes some benefits for those who do not. The attention of the Wests focuses, naturally
on nations that are actually or potentially hostile to the West.”

“National Intelligence Estimates, whose preparation is the responsibility of the Director of National Intelligence, Lieutenant General James Clapper, of the Air Force, are especially sensitive, because the analysts who prepare them have access to top-secret communications intercepts as well as the testimony of foreign scientists and intelligence officials, among others, who have been enlisted by the C.I.A. and its military counterpart, the Defense Intelligence Agency.”

It is with this background into the effort and scope of wetern intelligence gathering, and the anticipated uproar among warmongers when DNI prepares testimony for the Senate, that one ought to read the latest reaffirmation of the 2007 NIE.

A few choice phrases from your link to James Clapper’s report:
—————————————————————————–

–Tehran has developed technical expertise in a number of areas—including uranium enrichment, nuclear reactors, and ballistic missiles—from which it could draw if it decided to build missile-deliverable nuclear weapons. These technical advancements strengthen our assessment that Iran has the scientific, technical, and industrial capacity to eventually produce nuclear weapons. This makes the central issueits political will to do so.

— Iran has made progress during the past year that better positions it to produce weapons-grade uranium (WGU) using its declared facilities and uranium stockpiles, should it choose to
do so.

— Iran would likely choose a ballistic missile as its preferred method of delivering a nuclear weapon, if one is ever fielded.

The choice of words emphasizes, and reemphasizes the message that Iran has not made a decision to ever possess nuclear weapons. This, the report declares, is not for lack of technical/scientific/industrial capability, but purely a political decision based on costs and benefits analysis.

————

On the other hand, IAEA, who does not have any covert intelligence capability, even with AP and modified code 3.1 will never possess the kind of eyes and ears that western intelligence agencies have at their disposal, and whose mandate is purely technical and who is not tasked with determination of threats to peace, nor asked to judge any NPT member state’s political motivations, impugns:

“as Iran is not providing the necessary cooperation, including by not implementing its Additional Protocol, the Agency is unable to provide credible assurance about the absence of undeclared nuclear material and activities in Iran, and therefore to conclude that all nuclear material in Iran is in peaceful activities.”

If this is not deliberately adding fuel to a fire that has already engulfed innocent Iranians with economic warfare, threats of military action, and heightening the risks of regional proliferation by spreading baseless fears, I don’t know what is. And to think the justification for IAEA’s overreach is as flimsy-to-nonexistent as Prof Joyner has demonstrated, then shame on Mr Amano.

“The choice of words emphasizes, and reemphasizes the message that Iran has not made a decision to ever possess nuclear weapons. This, the report declares, is not for lack of technical/scientific/industrial capability, but purely a political decision based on costs and benefits analysis.”

From what I’ve learned, Iran’s position against nuclear weapons is much more deeply founded than that. For one thing, Ayatollah Ali Khamenei has issued a fatwa saying the production, stockpiling and use of nuclear weapons was forbidden under Islam.

One failure of western analysts, when looking at various cultures different from their own, is to assume that the people have the same motives that we do, except they are less developed. It’s a common failing, and a dangerous one. Chinese, Persians, Africans — they’re not like westerners. Their cultures are often very different which means their motivations are also very different. Many westerners, like Clapper, people who “don’t get out much,” will never understand that. They will never understand that others may not base their actions upon a cost/benefit analysis but rather upon something deeper and more meaningful (to them).

But hey, the US is the world leader so what does it matter? Bottom line is, what they say, goes. The faithful Europeans click their heels and say yes sir, three bags full, while Russia and China say yes and do “no.” And the world community has spoken thereby.

If the Iranians are sufficiently threatened it would be to their _benefit_ to withdraw from the NPT in favor of Supreme National Interest and weaponize, fatwa or not. The voice of the hawks would become stronger. It is by no means a monolithic govt.

If the _costs_ of not weaponizing become too high, they may well weaponize.

So cost-benefit does play some role.

There is also merit in what you say: it seems they are making a secular equivalent of the fatwa —

Iran is said to be preparing a formal pledge against developing nuclear weapons that would be delivered to the United Nations, the Associated Press reported on Tuesday.

“Iran plans to declare in the U.N. that it will never go after nuclear bombs,” the Mehr news agency quoted Iranian Mohammad Reza Rahimi as saying. He did not offer a timeline for delivery of the written pledge.

You are right. I should have said “may”. Although I think you cannot say Supreme Leader’s view is all of Iran’s polity’s view either. There are certainly hawks and doves. I think a cost/benefit analysis to weaponization is something most nations’ govt’s probably do.

It has been said that inflation is the result of selective cost benefit analysis; unforeseen costs and exaggerated anticipated benefits rear their ugly economic head as inflation.

If the fatwa has the virtue of including morality in the costs, and humanity in the benefits, and a little humility before god in man’s fallibility when it comes to analysis, then the fatwa IS a form of cost/benefit analysis.

Okay, look at it this way — is the whole movement and effort to halt the nonproliferation of weapons of mass destruction based on cost/benefit analysis? Or something deeper, say morality?

Here’s a blurb for Professor Joyner’s seminal book on the subject:

Proliferation of WMD technologies is by no means a new concern for the international community. Indeed, since the signing of the Nuclear Non-proliferation Treaty in 1968, tremendous energies have been expended upon diplomatic efforts to create a web of treaties and international organizations regulating the production and stockpiling of WMD sensitive materials within states, as well as their spread through the increasingly globalized channels of international trade to other states and non-state actors.

These tremendous diplomatic energies were only expended because of some esoteric cost/benefit analysis? I don’t think so. They were expended because mass destruction (particularly nuclear) weapons are terrible instruments and they shouldn’t exist. I believe that, and I further believe that many agree with me, particularly those who have worked in the field.

Did Professor Joyner do a cost/benefit analysis when he took the subject on? Or because it was right and it needed doing?

I’ll also reiterate my conclusion that, contrary to the presumption of many pundits and analysts, Iran has NO use cases for a nuclear weapon and knows it and has said so repeatedly.

What this means is simple: Iran is not EVEN seeking “break-out capability” because Iran could never achieve it without being attacked first. Which is what Clapper should have said instead of limiting his comment to diversion.

First, “break out capability” requires withdrawal from the NPT and kicking out the IAEA like North Korea did before construction of a weapon can occur. Otherwise the “capability” is just theoretical and possessed by ANY country with the technology to do the fuel cycle and store large amounts of LEU around.

Second, before Iran could actually “break out” in that manner, it would be attacked by conventional means by either Israel or the US (and in practical terms, both). There is no way Iran could produce a nuclear weapon from existing technology in a hot war when that technology’s facilities and electrical power are being bombed into the Stone age.

Third. even if Iran found some way to evade the attacks and construct, say, one to ten nuclear weapons, what are they going to do with them? How are they going to deliver them under hot war conditions? Against whom? And withstand what retaliation?

Fourth, the only nation Iran has ever been concerned about in nuclear terms was Iraq under Saddam. There is no way Iraq is every going to be a nuclear threat to Iran ever again. So what do they need “break out” capability for? India is not a threat. Turkey is not a threat. Pakistan is unlikely to become a threat unless its government collapses and in that case Pakistan will be threatened by India and the US long before Iran is involved.

I submit that all speculation that Iran is in any way seeking “breakout capability” is just that: pure speculation and projection of the analyst’s own psychology rather than any objective consideration of the constraints on Iran.

Correct. Iran is in the cat-bird seat in its area. It is closely allied with Russia, Iraq, Pakistan and India, and possibly with Afghanistan as the US gets thrown out. Life is good in Iran. Iran is being weaned (albeit forcibly) off of a strict dependence upon oil exports. It is developing its domestic industrial base and diversifying its exports. For one example, it is now exporting various refined petroleum products instead of raw petroleum.

This whole nonsensical “Iran seeks breakout capability” argument is meant to evade the fact that there is no evidence of any nuclear weapons program in Iran, nor evidence that the Iranians are particularly interested in making nukes. I suppose it is just too hard on some pundits to come right out and say so, so they hedge their language by appealing to the breakout capability assertion. Truth is, it would be impossible for Iran to NOT have a “breakout capability” — in fact 40 other nations have this same capability already according to Elbaradei, because it is simply a function of achieving a certain level of development and scientific/technological sucess, not because they’re actually planning to make nukes. If Iran wanted breakout capability, why suspend enichment for about 3 years and offer to put additional restrictions on their nuclear program?

It’s still difficult to figure out how Mr. Joyner and Mr. Dupont arrive at the conclusion that the IAEA’s mandate extends no further than detecting diversion of declared nuclear material or that the Board has no special role.
Here are some points that lead to the opposite conclusions:
1. According to Mr. Joyner, one “object and purpose” of the NPT is non-proliferation. NPT safeguards agreements are put in place to help achieve this object and purpose by requiring NPT non-nuclear weapons states to conclude safeguards agreements with the IAEA whose scope was explicitly comprehensive, all nuclear material in all peaceful nuclear activities. Where? Inside a facility and outside facilities. Within each state’s territory, under its jurisdiction or carried out under its control anywhere. The application of safeguards is explicitly comprehensive.
As a political matter, it is hard to imagine that the intention was to put in place a safeguards system that would verify only what a state declared and did not address itself at all to undeclared nuclear weapon programs. Why would states want early warning only about nuclear weapon programs stemming from declared nuclear activities? Such a system would not satisfy the parties’ aspirations, as stated in the preamble to the NPT, to “make every effort to avert the danger of [nuclear war].
In addition, comprehensive safeguards agreements facilitate nuclear cooperation, whose benefits, the preamble, affirms “should be available for peaceful purposes to all Parties of the treaty….” (This pillar is, Mr. Joyner states, a second “object and purpose” of the NPT.) Comprehensive safeguards that cover everything, declare and undeclared, do this by providing assurances that cooperation won’t support clandestine nuclear weapon programs.
Comprehensive safeguards also support Mr. Joyner’s third “object and purpose” of the NPT, nuclear disarmament because they provide assurances that help to “[ease] international tension and [strengthen} trust between States in order to facilitate” nuclear disarmament.
“Half-a-loaf safeguards” don’t support any of the three pillars of the NPT, and that is not what was put in place. NPT safeguards agreements make clear that a state must accept safeguards on all nuclear material and that the IAEA has the right and obligation to apply safeguards to all nuclear material in a state. What is the “ordinary meaning” of the phrase “all nuclear material?” Can that reasonably be interpreted to mean just the part that a state declares? No. The plain meaning of the words is “Everything, everywhere.” This is not tempered by the phrase, “in accordance with the terms of the Agreement.” How else would an agreement be implemented?
In addition, during the negotiation INFCIRC/153, which was negotiated by an open-ended committee of the Board of Governors of the IAEA and approved by the Board, a “half-a-loaf” formulation that would limit safeguards to detecting diversion of declared nuclear material was proposed, but it was rejected.
INFCIRC/153 is replete with instances that refer to the IAEA role in applying safeguards to all nuclear material – whether declared or not. A typical reference is to all nuclear material “subject to safeguards under the agreement” or “required to be subject to safeguards under the Agreement,” i.e., all of it. The IAEA’s mandate to apply safeguards to all nuclear material covers both declared locations and undeclared locations. One example for declared locations: the IAEA makes routine inspections to verify the “location of all nuclear material subject to safeguards under the agreement,” i.e., all nuclear material that is there whether it is declared or not.
The IAEA also has the right to use containment and surveillance measures, which can detect both unreported removal of declared nuclear material and introduction of undeclared nuclear material. It has used these inspection measures for this purpose since the 1980s. At declared facilities, not only does the IAEA have clear authority, it also has a robust set of tools to address the issue of undeclared activities and nuclear material.
2. How about at undeclared locations? Here is what David Fischer says in his 1997 history of the IAEA:
The EURATOM delegations accepted, however, that there would be no limit on the IAEA’s access rights if the Board considered that a ‘special inspection’ was needed, and the State gave its agreement, or if the Board decided that a special inspection was urgent and essential to verify non-diversion. Similarly, the IAEA would, in effect, have free access when it carried out so-called ad hoc inspections (chiefly to verify the State’s Initial Report on its holdings of nuclear material). (p. 256)
And,
A hitherto unused set of provisions permitting unrestricted access, included in all comprehensive NPT safeguards agreements, gave authority to the IAEA to carry out special inspections at additional locations in the State concerned, if the IAEA considered that the information provided by the State was “…not adequate for the Agency to fulfil its responsibilities under the agreement” — for instance if the IAEA believed that the State was hiding material that should be placed under safeguards, and the IAEA could therefore not fulfil its obligation under paragraph 2 of the standard agreement “…to ensure that safeguards will be applied…on all source or special fissionable material…within the territory of the State, under its jurisdiction, or carried out under its control anywhere…” The agreements set no limits to the IAEA’s access when it carried out such special inspections; in such circumstances the inspectors would have access to any place in the State concerned. In effect, this reflected Article XII.A.6 of the IAEA Statute under which IAEA inspectors “…have access at all times to all places and data…”
Before it carried out a special inspection at an additional location, the IAEA would have to get the agreement of the State concerned. However, if the State refused, the Board could order the State to admit the inspectors forthwith. If the State again refused the Board could and, in all probability, would report to the Security Council, the General Assembly and all the IAEA Member States that “…the Agency is not able to verify that there has been no diversion…” (p.282)
Admittedly, the tools available to the IAEA to detect undeclared nuclear activities at undeclared locations are less robust than those that can be deployed at declared facilities. But that is a different statement than that the IAEA lacks the authority to do so.
3. Suppose you believe that decisions of NPT parties at review conferences are to be given special weight. Here is what was agreed in 1995 in the decision that adopted, “Principles and Objectives for Nuclear Non-Proliferation and Disarmament (New York, 17 April-12 May 1995 NPT/CONF.1995/32/DEC.2 .
¶ 9. The International Atomic Energy Agency (IAEA) is the competent authority responsible to verify and assure, in accordance with the statute of the IAEA and the Agency’s safeguards system, compliance with its safeguards agreements with States parties undertaken in fulfillment of their obligations under article III (1) of the Treaty, with a view to preventing diversion of nuclear energy from peaceful uses to nuclear weapons or other nuclear explosive devices. Nothing should be done to undermine the authority of the IAEA in this regard. States parties that have concerns regarding non-compliance with the safeguards agreements of the Treaty by the States parties should direct such concerns, along with supporting evidence and information, to the IAEA to consider, investigate, draw conclusions and decide on necessary actions in accordance with its mandate.
If a state party has ”concerns regarding noncompliance” that another party is operating an undeclared nuclear facility, a clear violation of its safeguards agreement, what it do? It should tell the IAEA, as stated in the Principles and Objectives, “direct [its] concerns, along with supporting evidence and information, to the IAEA to consider, investigate, draw conclusions and decide on necessary actions in accordance with its mandate.”
What a surprise it would be if the IAEA said, too bad, that is outside our mandate.
Well, is it? NPT parties think otherwise. In the same decision, they agreed that:
¶ 11. IAEA safeguards should be regularly assessed and evaluated. Decisions adopted by its Board of Governors aimed at further strengthening the effectiveness of IAEA safeguards should be supported and implemented and the IAEA’s capability to detect undeclared nuclear activities should be increased. Also States not party to the Treaty on the Non-Proliferation of Nuclear Weapons should be urged to enter into comprehensive safeguards agreements with the IAEA.
So the decisions of the Board should be supported and implemented, which gives the Board a special role in how NPT safeguards agreements should be implemented and understood. In addition, the capability to detect undeclared nuclear activities should be increased. NPT parties would certainly not urge strengthening the capability of the IAEA to do something that is outside its mandate or not authorized by the Statute and the safeguards agreement.
4. How about practice:
• Going back to the 1980s, the IAEA has designed and implemented safeguards in order to detect both diversion of declared nuclear material and undeclared production of plutonium at reactors; separated plutonium at reprocessing plants; and high enriched uranium at enrichment plants.
• When the Tammuz reactor in Iraq was destroyed in 1981 by Israel for fear it would produce undeclared plutonium, many states characterized the attack on the reactor as an attack on IAEA safeguards. They took it for granted that the objective of the IAEA under Iraq’s NPT safeguards agreement was to detect undeclared production of plutonium and were chagrined that Israel gave too little credence to the IAEA’s effectiveness in this role.
• In 1991, the IAEA concluded that it could not verify the completeness of the initial inventory reported by the DPRK. The Board requested a special inspection to an undeclared location, which was refused, a refusal that was reported to the UN Security Council.
• In 1992, Romania requested a special inspection in order to permit the IAEA to examine previous undeclared production of plutonium.
• The IAEA has used environmental sampling since the early 1990s to detect undeclared nuclear activities. (That is its primary function, since environmental sampling has little if any relevance to detecting diversion of declared nuclear material.)
5. The UN Security Council has endorsed on numerous occasions all of the steps that the IAEA has asked Iran to take.
6. How about the role of the Board. In addition to the points above, the Statute says that, “The Board shall call upon the recipient State or States to remedy forthwith any non-compliance which [the Board] finds to have occurred. The Board shall report the non-compliance to all members and to the Security Council and General Assembly of the United Nations [emphasis added]. Paragraph 19 of INFCIRC/153 gives the Board the authority to report to the UN a finding that the IAEA can’t verify “that there is no diversion of nuclear material required to be safeguarded under the Agreement….” This action is explicitly exempted from the arbitration provisions.
The Board has another unique role under the Statute that would require it to report to the UN Security Council if under certain circumstances, for example, pursuit of a nuclear weapon program a non-nuclear weapon state party to the NPT. This is in Article III.B.4, which says that, “if in connection with the activities of the Agency there should arise questions that are within the competence of the Security Council, the Agency shall notify the Security Council, as the organ bearing the main responsibility for the maintenance of international peace and security, and may also take the measures open to it under this Statute, including those provided in paragraph C of Article XII.”
It seems clear that the authority and mandate of the IAEA to address itself to undeclared nuclear activities at declared nuclear facilities and anywhere else in a state is unambiguous. It is consistent with the Statute. It flows from the object and purpose of the NPT and the plain meaning of NPT safeguards agreements. It is supported by the negotiating history of the Model NPT Safeguards Agreement. It was endorsed by the 1995 NPT Review and Extension Conference. It underpins long-standing IAEA safeguards implementation practices. The UN Security Council supports it. In fact, it is taken for granted by almost everyone.

“ave authority to the IAEA to carry out special inspections at additional locations in the State concerned, if the IAEA considered that the information provided by the State was “…not adequate for the Agency to fulfil its responsibilities under the agreement” — for instance if the IAEA believed that the State was hiding material that should be placed under safeguards, and the IAEA could therefore not fulfil its obligation under paragraph 2 of the standard agreement “…to ensure that safeguards will be applied…on all source or special fissionable material…within the territory of the State, under its jurisdiction, or carried out under its control anywhere…” The agreements set no limits to the IAEA’s access when it carried out such special inspections; in such circumstances the inspectors would have access to any place in the State concerned. In effect, this reflected Article XII.A.6 of the IAEA Statute under which IAEA inspectors “…have access at all times to all places and data…”

etc etc.

Well, it is too bad that the IAEA has not requested special inspections: they are forcibly asking for voluntary inspections e.g. of Parchin.

There are only two avenues open to the IAEA:

— arbitration as spelled out in the CSA

— special inspections.

the IAEA has chosen neither and has no legal authority to demand anything further.

In nay case, the evidence behind the case for accessing Parchin is secret and not even shown to Iran, which is kind of legal thin ground in my book.

The IAEA already was allowed access to Parchin twice and found zip.

The whole case against Iran rests on the politicized referral to the UNSC.

As Pierre Goldschmidt says in his article on non-compliance in Survival:

==============================
“Since 2003, the IAEA Secretariat has reported specific cases of non-compliance
with safeguards agreements by Iran, Libya, South Korea and Egypt to the
board (Step 2). The actions taken by the board in each case were inconsistent
and, if they go uncorrected, will create unfortunate precedents.”

[……….]

“Two unfortunate precedents

On 26 November 2004, the board decided not to adopt a resolution on
South Korea and, therefore, not to report the case to the Security Council,
setting an unfortunate precedent motivated at least in part by political
considerations. …. Since the board is obliged to report any case of
non-compliance to the Security Council, not doing so in the case of South
Korea could be interpreted as meaning that the board did not consider the
breaches to constitute non-compliance with Comprehensive Safeguards
Agreements.”

[…………]

But there is a danger of setting bad precedents based on arbitrary criteria
or judgements informed by political considerations…..

It is therefore necessary for the agency to formally acknowledge that in the
past some of its decisions have created potentially
damaging precedents that need to be corrected to avoid any impression
that the implementation of the IAEA Statute is selective.

===============================

The IAEA should take Mr. Goldschmidt’s advice and admit it was wrong in the past and “formally acknowledge” its mistakes e.g. in handling the Iran file.

BTW, Can the IAEA verify the purely peaceful nature of Brazil’s nuclear program?

As it turns out the Agency cannot conclude that all nuclear material in 50 other nations is in purely peaceful activities either:

“(b) For 51 of these States, the Secretariat found no indication of the diversion of declared nuclear material from peaceful nuclear activities. ******Evaluations regarding the absence of undeclared nuclear material and activities for each of these States remained ongoing.***** On this basis, the Secretariat concluded that, for these States, ******declared****** nuclear material remained in peaceful activities.”

Note the political difference in phraseology?

The same is true of Iran: the Secretariat has concluded that, for Iran, ******declared****** nuclear material remained in peaceful activities.

Yousaf, the quotes that you attrubute to me (Marrianne “sez”) are from the history of the IAEA written by David Fischer. Here is a quote from, the introduction to the book: “The Institute [Monterey Institute of International Studies] commissioned Mr. David Fischer, who has been associated with the IAEA for more than forty years, to write the history of the Agency. David Fischer took part in the negotiation of the IAEA’s Statute in 1954–1956 and served on the IAEA’s Preparatory Commission. From 1957 until 1981 he was the Agency’s Director and subsequently Assistant Director General for External Relations. In 1981 and 1982 he was Special Adviser to Director General Eklund and to myself [Hans Blix]. Since then he has served as a consultant to the IAEA on many occasions.”

I leave it to you and others to decide for yourselves how much weight to give to his words, but he was a participant in the drafting and conclusion of the Statute and NPT safeguards agreements and is certainly a knowledgable observer. His view about the scope of NPT safeguards agreements is clearly at odds with the narrow interpretation of the authority of the IAEA that you and Mr. Joyner have adopted.

As already noted, an option available to the IAEA is to seek cooperation, an option that states can also use. Indeed, both are obligated to cooperate by Paragraph 3 of safeguards agreements.

Hi Marianne,
I was hoping you would respond to this post. Your other comments have been very good. Obviously I disagree with their substance, but you are clearly knowledgeable about the IAEA and the NPT generally. Much moreso than many of the people I cross rhetorical swords with.
I wish I knew who you were. Perhaps someday.

I have to say, though, and with that general respect in mind, that this comment is perhaps your weakest. I was honestly expecting more on the actual arguments I made in this post and my previous post. I have to ascribe the absence of such arguments to the watertight nature of the arguments that I have cumulatively made to this point, leaving you and Albright & The Gang nowhere else to go to really meet my arguments head on.

There are an awful lot of words in your comment here, but none that really directly rebut my arguments about the specifics of the IAEA’s mandate, as determined by its authorizing documents. The closest subject of your comment to the real legal issues involved is the law on special inspections. I plan to do a post soon on special inspections, and I will attempt to explain in that post the place of special inspections in the CSA as understood holistically, and how this limited and exceptional procedure provided for in the CSA does not provide evidence for the general scope of the IAEA’s authority and mandate to investigate and assess under the CSA. It’s a discrete and limited process, essentially based on mutual consent between the IAEA and the safeguarded state, to be employed only in exceptional circumstances. But more on that subject later.

I guess I’ll have to wait and see if you have anything else to add, or if Albright and his non-lawyer buddies have any response to make. If not, I will consider that my case has been made and will leave it to the court of world opinion to judge between us. Actually, what I really want is to represent a state in an arbitration against the IAEA, challenging its interpretation of its mandate, and the actions it has taken pursuant to this interpretation. If anyone out there wants to pass this offer along to interested state officials, that would be great.

Dan, the comments were a response (perhaps too long-winded) to your emphasis on the need to take advantage of appropriate sources of interpretation, the Vienna Convention and NPT Review Conference consensus documents. The Treaty says look to preparatory work; ordinary meaning in light of object and purpose; subsequent agreements; application; and practice. So I observe that your narrow interpretation was rejected during the negotiation of the safeguards agreement; the ordinary meaning of “all’ is “all”; the three pillars that you call the objects and purposes of the NPT are all undermined by “half-a-loaf” safeguards; there are many subsequent agreements (including facility attachments that spell out safeguards approaches that include a strong focus on detecting undeclared nuclear material and activities, espeially at enrichment plants, and which accept contaiment and surveillance and environmental sampling as safeguards measures); practice that goes back 20-30 years; and inspections measures and their routine application to detect undeclared nuclear material and activities.

Not everyone agrees that NPT Review Conference Final documents have the role that you ascribe to them. But you think they have “very real implications.” So I point out two elements of the very important Principles and Objectives decision that was agreed at the 1995 NPT Review and Extension Conference that give the IAEA Board of Governors a special role (although this is not the only source of this role, which may be found in the Statute and the safeguards agreement) and make clear that the IAEA is to investigate concerns about compliance with safeguards agreements brought to its attention by Member States. It is not possible that the parties meant only non-compliance related to diversion from declared stocks. Recall that in 1995, the parties were keenly aware of the IAEA’s experiences and concerns, which remained on-going, about the DPRK and the discovery of Iran’s undeclared uranium enrichment plant.

You may think these points are weak, but I observe that when the grounds shift to your terms, you shift back to a point that I did not emphasize, special inspections. Perhaps you should rebut or respond to the points actually made. Weak, then go ahead and explain why. Dismiss them? Not a credit to your position.

Special inspection authority is relevant, of course, because it gives the broader interpretation operational meaning and doesn’t seem strictly relevant to the narrow interpretation. If the special inspection authority or process to obtain one is weak, then ascribe that to the typical outcome of international negotiations conducted by consensus. Of course, failure of a state to agree to a request for a special inspection may, and has resulted in a referral to the UN Security Council, whose powers of enforcement are real.

A few points for others: Strengthening safeguards does not imply that the core agreement necessarilly lacks authorities; only, perhaps, that the tools to implement them should be improved. There are ways to obtain access to undeclared locations other than special inspections. One is called cooperation.

“(b) For 51 of these States, the Secretariat found no indication of the diversion of declared nuclear material from peaceful nuclear activities. ******Evaluations regarding the absence of undeclared nuclear material and activities for each of these States remained ongoing.***** On this basis, the Secretariat concluded that, for these States, ******declared****** nuclear material remained in peaceful activities.”

Note the political difference in phraseology?

The same is true of Iran: the Secretariat has concluded that, for Iran, ******declared****** nuclear material remained in peaceful activities.

================

Beyond a shadow of a doubt, the IAEA is acting in a manner that would be consistent with a characterization such as, e.g., “politicized”

“1. According to Mr. Joyner, one “object and purpose” of the NPT is non-proliferation. NPT safeguards agreements are put in place to help achieve this object and purpose by requiring NPT non-nuclear weapons states to conclude safeguards agreements with the IAEA whose scope was explicitly comprehensive, all nuclear material in all peaceful nuclear activities. Where? Inside a facility and outside facilities. Within each state’s territory, under its jurisdiction or carried out under its control anywhere. The application of safeguards is explicitly comprehensive.”

There is a difference between the “purpose” of the NPT and the methods which were negotiated to carry out those purposes. We are talking here of the legal limitations.

I myself have wondered occasionally how comprehensive the IAEA’s operations are supposed to be. Unfortunately some of the language in the relevant documents is somewhat ambiguous on that point. Depending on how you read it, it may refer to “declared facilities only” or it may refer to “declared and undeclared facilities”.

It seems clear that under the Additional Protocol the IAEA may look fairly hard for “undeclared facilities”. Iran is not under that Protocol, however, and therefore it seems clear that the IAEA does not, under the CSA, have the authority to do so.

“As a political matter”

Again, the issue is not the political purpose, but whether the negotiated and standard agreements between the client states and the IAEA, under either the CSA or AP, allow for it.

“Why would states want early warning only about nuclear weapon programs stemming from declared nuclear activities?”

Why wouldn’t they?

“Such a system would not satisfy the parties’ aspirations”

Again, aspirations are not relevant. What matters is the agreed legal documents. If I had been a dictator in charge of setting up the NPT and IAEA, yes, I would have made sure EVERYTHING was open to inspection.

That is not what the parties to the NPT agreed upon. And that’s all that matters in legal terms.

““Half-a-loaf safeguards” don’t support any of the three pillars of the NPT, and that is not what was put in place.”

Then why was the Additional Protocol only brought into existence years after the standard CSA? Because obviously it was needed because the original CSA did NOT meet the requirements of the NPT.

“This is not tempered by the phrase, “in accordance with the terms of the Agreement.” How else would an agreement be implemented?”

I think that is the legal matter being debated. So it’s not obvious that it doesn’t limit the IAEA’s options.

“A typical reference is to all nuclear material “subject to safeguards under the agreement” or “required to be subject to safeguards under the Agreement,” i.e., all of it.”

This, however, is ambiguous. Clearly the IAEA would want to know about a secret nuclear weapons facility. However, the phrase “required to be subject to safeguards” could also refer to nuclear materials which are developed later under the CSA, not just the materials initially declared under the CSA.

“The IAEA also has the right to use containment and surveillance measures, which can detect both unreported removal of declared nuclear material and introduction of undeclared nuclear material.”

Introduction of undeclared material in a DECLARED facility already under the CSA. It requires the Additional Protocol to go on “fishing expeditions” and even those must be negotiated.

“The EURATOM delegations accepted, however, that there would be no limit on the IAEA’s access rights if the Board considered that a ‘special inspection’ was needed, and the State gave its agreement, or if the Board decided that a special inspection was urgent and essential to verify non-diversion.”

“and the state gave its agreement”.

And Dan has said he will address the “special inspection” regime later. The fact that it is referred to as a “special” inspection clearly shows that it something not covered as a matter of course.

“(chiefly to verify the State’s Initial Report on its holdings of nuclear material). (p. 256)”

Which doesn’t mean undeclared facilities, clearly.

“on all source or special fissionable material…within the territory of the State, under its jurisdiction, or carried out under its control anywhere…””

Which is the part I find ambiguous. As we all know, there is no way anyone could find some tiny installation somewhere within the entire geography of Iran – or on some mountainous island somewhere in the China Sea like a James Bond movie if the Iranians really wanted to do that. Yes, some good intelligence work might expose such a thing. But really, verifying the non-existence of SOME level of nuclear weapons program is essentially an impossibility.

The NPT deals with declared materials because no one takes the threat of a REALLY hidden nuclear weapons program seriously. It’s simply too theatrical and unlikely to result in a “threat to the peace and security of the region” without coming to light well before it is such a threat.

There is also the national sovereignty issue. No state is going to allow the IAEA or any other foreign body, regardless of agreements, to wallow through every square foot of its territory, including all its military installation, in pursuit of a hypothetical weapons program.

So regardless of the negotiations taken that you cite, no state is going to do more than absolutely necessary to live up to its obligations under the NPT as set forth in the standard CSA or the Additional Protocol.

“Also States not party to the Treaty on the Non-Proliferation of Nuclear Weapons should be urged to enter into comprehensive safeguards agreements with the IAEA.”

Yes, we see how the US has been seriously pressuring Israel to do so… :-)

“• Going back to the 1980s, the IAEA has designed and implemented safeguards in order to detect both diversion of declared nuclear material and undeclared production of plutonium at reactors; separated plutonium at reprocessing plants; and high enriched uranium at enrichment plants.”

All already declared facilities.
“• The IAEA has used environmental sampling since the early 1990s to detect undeclared nuclear activities. (That is its primary function, since environmental sampling has little if any relevance to detecting diversion of declared nuclear material.)”

Said sampling is done as far as I know around either declared facilities – to detect higher than allowed enrichment, for example – or in cases of suspected nuclear facilities in countries like Syria. I’m not aware that the IAEA randomly conducts such tests as a matter of course in absence of a specific suspicion of undeclared nuclear facilities in the states under the NPT. If you know otherwise, cite.

“5. The UN Security Council has endorsed on numerous occasions all of the steps that the IAEA has asked Iran to take.”

And there is a major debate on whether that was either legal or appropriate in comparison with allegedly equal violations of the IAEA Safeguards Agreement by such states as Brazil, Argentina and South Korea.

It also provides not evidence as to the legal issues per se.

““The Board shall call upon the recipient State or States to remedy forthwith any non-compliance which [the Board] finds to have occurred.”

Iran has not been in non-compliance except perhaps in some minor matters.

“a finding that the IAEA can’t verify “that there is no diversion of nuclear material required to be safeguarded under the Agreement….” This action is explicitly exempted from the arbitration provisions.”

The IAEA has never had a finding that it cannot verify that Iran has not diverted material. Every single IAEA report on Iran has said so. When the IAEA referred the Iran file to the UNSC, it was not because of any verified or suspected diversion. It was based solely on reported “intelligence” – from Israel, no less – that Iran had conducted “weapons-related research” for which there was ZERO evidence that any nuclear materials were involved.

The IAEA’s implementatiom of safeguards at declared facilitites is relevant to this discussion. It implements safeguards to detect the use of declared facilitties to produce undeclared nuclear material, including from enrichment or irradiation or reprocessing, of undeclared nuclear material. If its only remit is to detect the diversion of declared nuclear material from declared inventories at declared facilitties, then this set of safeguards objeectives would exceed its authority. But it doesn’t exceed its authority. The broad interpretation is widely accepted, as are these safeguards implementation approaches, by every NPT state with a reactor, enrichment plant, or reprocessing plant subject to safeguards, except, perhaps, those not in compliance with safeguards agreements because they have or had undeclared nuclear activities.

Safeguards are based on assessments of the correctness and completeness of a State’s ***********declared************ nuclear material and nuclear-related activities. Verification measures include on-site inspections, visits, and ongoing monitoring and evaluation. Basically, two sets of measures are carried out in accordance with the type of safeguards agreements in force with a State.

One set relates to verifying State reports of *****declared****** nuclear material and activities. These measures – authorized under NPT-type comprehensive safeguards agreements – largely are based on nuclear material accountancy, complemented by containment and surveillance techniques, such as tamper-proof seals and cameras that the IAEA installs at facilities.

Another set adds measures to strengthen the IAEA’s inspection capabilities. They include those incorporated in what is known as an “Additional Protocol” – this is a legal document complementing comprehensive safeguards agreements. The measures enable the IAEA not only to verify the non-diversion of declared nuclear material but also to provide assurances as to the absence of undeclared nuclear material and activities in a State.

Your response to me addresses none of the issues I raised. It merely reaffirms that the IAEA has methods in place to detect the use of declared facilities for undeclared activities. Of course they do. This has nothing to do with the notion that the IAEA has massive powers and authority to detect undeclared facilities anywhere outside of or without the agreement of the state involved.

Yousaf, the question I was addressing was whether the IAEA’s remit extends to addressing the correctness and completeness of states’ declarations. The fact sheet to which you refer confirms this. It says:

“Safeguards are based on assessments of the correctness and completeness of a State’s declared nuclear material and nuclear-related activities.”

It goes on to describe the inspection measures under NPT safeguards agreements that it uses at facilities. The fact sheet says they are based on assessments of correctness and completeness. And they are. Inspection measures as listed are used to detect diversions from declared nuclear material flows and inventories and, as noted earlier, to detect undeclared nuclear activities at reactors, reprocessing plants, and enrichment plants. The Fact Sheet also lists special inspections, which, as David Fischer put it, can be invoked if a state is hiding something.

The Fact Sheet confirms, not refutes, the broad mandate for the IAEA that you and Mr. Joyner find absent.

While the mandate exists, it is also true that NPT safeguards agreements without an Additional Protocol do not provide tools to address undeclared activities away from declared facilities as strong as the international community wished. It negotiated the Additional Protocol to help remedy this situation.

“Safeguards are based on assessments of the correctness and completeness of a State’s ********declared*********** nuclear material and nuclear-related activities.”

Also:

“One set relates to verifying State reports of *****declared****** nuclear material and activities. These measures – authorized under NPT-type comprehensive safeguards agreements – largely are based on nuclear material accountancy, complemented by containment and surveillance techniques, such as tamper-proof seals and cameras that the IAEA installs at facilities.”

Let me know the quotes that support your view.

You keep talking about “special inspections” again and again: Please do ask the IAEA DG to kick those off in Iran because so far he has not.

See this at the end is what I really think lies at the core of our discussion about the legal authority and mandate of the IAEA. You and others want to distinguish between the IAEA’s “mandate” or “authority” under the CSA on the one hand, and the “tools” the IAEA is given to fulfill this mandate in the CSA on the other. As I have said before, I think this is a fundamental misunderstanding of the CSA, taken holistically as the VCLT rules on interpretation require. To quote the CSA Article II in its entirety:

“The Agency shall have the right and the obligation to ensure that safeguards will be applied, in accordance with the terms of this Agreement, on all source or special fissionable material in all peaceful nuclear activities within the territory of Iran, under its jurisdiction or carried out under its control anywhere, for the exclusive purpose of verifying that such material is not diverted to nuclear weapons or other nuclear explosive devices.”

I think that Article II makes clear that the IAEA’s authority and mandate are both defined by and circumscribed by the tools, or rather the procedures agreed to by the NNWS state party, in the CSA. The IAEA’s authority and the tools agreed to for carrying out its mandate in the CSA ARE ONE IN THE SAME. There is no extra latent authority or mandate the IAEA has beyond the actual terms and of the CSA, inclusive of the specific agreed procedures and roles it provides for.

I think that often you and others confuse the terms of Article I of the CSA, which lists the obligations of the NNWS party, with the terms of Article II which are indeed about the authority and mandate of the IAEA. Under Article I the NNWS party does have the obligation to accept safeguards on, and pursuant to the agreed procedures in the CSA declare the existence and amounts of, all fissile materials within its territory. But the IAEA’s authority and mandate as spelled out in Article II is not co-extensive with, or defined by, this obligation on the NNWS party in Article I. The CSA’s terms provide for certain specific procedures whereby the IAEA is to perform its limited monitoring and supervisory role. I say limited, again, because it would be ludicrous (i.e. “manifestly absurd or unreasonable,” to quote the VCLT) to argue that the IAEA has the authority to visit anywhere it wants within the state CSA party, whenever it wants, and put whatever safeguarding equipment it wants there, in order to make sure the NNWS party is upholding its Article I obligation. No state would ever agree to that. And as Yousaf and others have pointed out, even if the IAEA had that kind of authority, they could not hope to in fact enforce through investigations and assessments the NNWS party’s compliance with its Article I obligation.

So in Article II of the CSA, the compromise was reached whereby the IAEA would have the authority to perform the investigations and assessments spelled out in the terms of the CSA. This would allow the IAEA some authority and mandate to monitor and supervise the NNWS party’s fulfillment of its Article I obligation, while definitely not giving the IAEA plenary police or inspection powers inside the CSA, which is what you and others seem to keep arguing for.

The IAEA has authority to “monitor and supervise” [although I would never use these terms] a NNWS party’s fulfillment of its Article 1 obligations, i.e., has it placed all nuclear material under safeguards. I thought we had finally agreed on the proposition that there is no half-a-loaf.

But perhaps not. The plain reading of Article II is for the IAEA to apply safeguards, in accordance with the terms of the Agreement, to all nuclear material. The phrase, “in accordance with…” modifies the term safeguards, it doesn’t qualify the obligation. It cannot. You have an obligation or you don’t. The compromise was not reached on the obligation. The compromise was reached in circumscribing the surprisingly extensive safeguards authority in the Statute.

It cannot routinely go anywhere, anytime, but If it concludes that it cannot fulfill its obligation to apply safeguards to all nuclear material, it may use one of the “terms of the Agreement,” special inspections, and ask for one in accordance with the terms of the Agreement. It may ask for access anywhere and for information not otherwise provided. A state may refuse. In this case, the terms of the agreement allow the Board to report this to the UN Security Council. [Not the refusal, per se.]

The IAEA does what it can under the terms of the agreement to fulfill its obligation and exercise its rights. Under routine circumstances, it can do more at facilities than it can do at undeclared locations . No surprise there. But non-compliance is not routine.

So, let’s read the Agreement holistically. No good to quote just one paragraph. Still doubts about interpretation. Let’s go to VCLT. Plain meaning, object and purpose, negotiation, subsequent practice, etc.; every interpretative element of VCLT leads to the same conclusion – IAEA right and obligation to apply safeguards to all nuclear material.

Perhaps we have concluded this dialogue – although I would be curious to have a response to the set of points I made earlier that show, pretty convincingly, I think, that VCLT ground rules lead to the very conclusion you reject. Or, as well, what obligation is it that if unfulfilled would justify a special inspection.

Thanks for your thoughtful and polite rejoinders. Would that all your commenters were so.
—–

[I know of no one who suggests that as a routine matter a CSA allows the IAEA to visit anywhere, any time (although this authority is in the Statute), and install equipment wherever it wants. (Nor to “supervise” either.)]

Any dispute arising out of the interpretation or application of this Agreement, except a dispute with regard to a finding by the Board under Article 19 or an action taken by the Board pursuant to such a finding, which is not settled by negotiation or another procedure agreed to by the Government of Iran and the Agency shall, at the request of either, be submitted to an arbitral tribunal composed as follows:

the Government of Iran and the Agency shall each designate one arbitrator, and the two arbitrators so designated shall elect a third, who shall be the Chairman. If, within thirty days of the request for arbitration, either the Government of Iran or the Agency has not designated an arbitrator, either the Government of Iran or the Agency may request the President of the International Court of Justice to appoint an arbitrator. The same procedure shall apply if, within thirty days of the designation or appointment of the second arbitrator, the third arbitrator has not been elected. A majority of the members of the arbitral tribunal shall constitute a quorum, and all decisions shall require the concurrence of two arbitrators.

The arbitral procedure shall be fixed by the tribunal. The decisions of the tribunal shall be binding on the Government of Iran and the Agency.”

==============

I agree with you that the IAEA should have invoked special inspections instead of doing an extra-judicial referral to the UNSC which even Pierre Goldschmidt disagreed with on the grounds that it appeared biased.

Hi Marianne,
We do obviously continue to disagree on these points. Again, I wish we could both participate openly on a panel sometime to really try and flesh out these various arguments.
I do want you to feel welcome here, and I hope you will continue to comment when you think things need to be said. While we ultimately disagree, I continue to think that you and Chris Ford do the most knowledgeable and professional job of challenging my analysis and arguments. I look forward to continuing dialogue in the future.

“The Agency shall have the right and the obligation to ensure that safeguards will be applied, in accordance with the terms of this Agreement, on all source or special fissionable material in all peaceful nuclear activities within the territory of Iran, under its jurisdiction or carried out under its control anywhere, for the exclusive purpose of verifying that such material is not diverted to nuclear weapons or other nuclear explosive devices.”

What part of “on all source or special fissionable material IN ALL PEACEFUL NUCLEAR ACTIVITIES” don’t you get? This by ITSELF specifies that only DECLARED materials are subject to inspection! What state would DECLARE NON-PEACEFUL nuclear activities?!

And what part of “for the EXCLUSIVE purpose of verifying that such material is not DIVERTED to nuclear weapons or other nuclear explosive devices” don’t you get? “Such material” OBVIOUSLY cannot refer to undeclared material used in non-peaceful activities because by definition no such material can be “diverted” because it is already in non-peaceful activities! Only declared material in declared facilities can be diverted (or undeclared material introduced into declared facilities or undeclared activities performed in declared facilities such as enriching to higher levels than declared.)

The only part of this clause which was a bit ambiguous to me was the reference to “under its jurisdiction or carried out under its control anywhere”, which implied a wider reference than “all peaceful nuclear activities”. But now I see it’s clear that this clause refers ONLY to DECLARED nuclear activities. And because no state would declare non-peaceful activities, the IAEA is constrained under the CSA to declared facilities only.

The AP is required when the IAEA believes there may be undeclared activities. Iran is not under the AP, although they did voluntarily work under it for over two years, during which time nothing was found to indicate undeclared activities.

And none of the activities for which the IAEA is demanding answers fall under the CSA remit. They fall under the AP (if that) which Iran is not obligated to follow.

Guys, hey, you have to take into account that safeguards don’t get put on a non-peaceful nuclear activity that is allowed under the NPT – like nuclear powered warships. Get it? States do declare non-peaceful activities.